PLEASE READ THESE TERMS CAREFULLY BEFORE USING THIS SITE OR SIGNING UP FOR SERVICES
NO EMERGENCY CALLING: DO NOT USE THE SERVICES TO CALL EMERGENCY SERVICES THROUGH ANY OTHER TELEPHONE NUMBERS. YOU MUST MAKE ALTERNATIVE COMMUNICATIONS ARRANGEMENTS TO MAKE EMERGENCY CALLS.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE NOT A SUBSTITUTE FOR A TRADITIONAL TELEPHONE AND THAT YOU WILL NOT USE THE SERVICES TO MAKE EMERGENCY CALLS USING 911 OR THROUGH OTHER TELEPHONE NUMBERS. YOUR FURTHER AGREE THAT YOU WILL ADVISE ANY USERS OF THE SERVICES THAT THE SERVICES DO NOT PROVIDE EMERGENCY CALLING FUNCTIONALITY.
LIMITED TEXT-TO-911 CAPABILITIES: TEXT-TO-911 ALLOWS USERS TO CONTACT EMERGENCY PERSONNEL BY SENDING A TEXT MESSAGE TO 911 FROM THE EVOICE MOBILE APPLICATION. IT IS AVAILABLE IN LIMITED LOCATIONS ACROSS THE U.S. BUT MAKING VOICE CALLS TO CONTACT 911 IS PREFERABLE. NOTE THAT THE EVOICE MOBILE APPLICATION DOES NOT SUPPORT VOICE CALLS TO 911. SEE BELOW FOR MORE INFORMATION REGARDING TEXT-TO-911.
1. Acknowledgement and Acceptance of Terms of Service
This Agreement is between you (“you”, “your”), as an authorized user of the Services, and J2 Web Services, Inc., a Delaware corporation, or its subsidiaries (the “Company,” “eVoice,” or “we”). For purposes of this Agreement, “Services” is defined as any and all services provided by the Company to you either now or in the future and “eVoice account” is defined as the eVoice Receptionist account or the eVoice Plus account, or any other eVoice branded account through which you access the Services. “Number” is defined as each assigned eVoice telephone number. If you are an administrator of an eVoice account, you are responsible for your users’ adherence to these Terms of Service.
These Terms of Service, together with any operating rules, policies, price schedules or other supplemental documents published from time to time by the Company (collectively, the “Agreement”), constitutes the entire agreement between the Company and you regarding the Services, and supersedes all prior agreements between the Company and you regarding the subject matter of this Agreement. By using the Services, you confirm your acceptance of, and agree to be bound by, this Agreement. If you are using the Services on behalf of your employer, you represent that you are authorized to accept this Agreement on your employer’s behalf.
For Canadian Users: Please note that when you place an order to purchase on this Website, it constitutes an offer to purchase and remains subject to the Company’s acceptance. Goods or services listed or described on this Website constitute an invitation to make an offer to purchase.
If you begin, but fail to complete the sign up process for Services, the Company may contact you in an effort to help you sign up for the Services or another service provided by the Company. You hereby authorize the Company to make such contact, even if you ultimately determine not to sign up for any of the services provided by the Company.
Unless explicitly stated otherwise, this Agreement will govern the use of any new features that augment or enhance the current Services, including but not limited to the release of new Company software and Services. In the case of any violation of this Agreement, the Company reserves the right to seek all remedies available by law and in equity.
You represent and warrant that you are at least 18 years of age or, as applicable, the age of majority in the country, state and/or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You agree to be financially responsible for your use of the Services (as well as for use of your account by others, including minors living with you) and to comply with your responsibilities and obligations as stated in this Agreement.
No Emergency Calling: The Services are not a replacement for traditional wireline services, nor are they a replacement for cellular services. You cannot make emergency calls using the Services. If you attempt to make a 911 call while using the Services from your desktop or laptop computer, you will receive an error message stating that the call cannot be completed. If you attempt to make a 911 call using the eVoice mobile application on your smartphone, you will receive an error message stating that the call cannot be completed. But use of the Services from a cellular phone does not interfere with your ability to place a 911 call from your cellular device as you would typically place such a call. It is only if you attempt to place an emergency call using the Services through the actively running eVoice mobile application that such a call will not complete. You agree to advise any users of the Services that the Services do not provide emergency calling functionality. Accordingly, you must ensure that you and any other users of the Services have other communications services available to you or to them so that you and they are able to place emergency calls.
Limited Text-to-911 Capabilities: Text-to-911 provides users with the ability to send text messages to emergency call takers. Please note that text-to-911 functionality is only available in limited locations throughout the U.S. Public Safety Answering Points, referred to as “PSAPs” must have implemented the necessary capabilities to receive such emergency text messages. If you attempt to send a text-to-911 message and the PSAP is not capable of receiving it, you will receive a bounce-back message informing you that the emergency text was not received by the relevant PSAP. Because not all PSAPs are capable of receiving text-to-911 messages, it is preferable for you to contact emergency services by voice calls. But you cannot use our Services to contact emergency services through a voice call. Accordingly, you must ensure that you have other communications services available so that you are able to place emergency calls and are not solely reliant on the eVoice mobile application’s text-to-911 functionality for contacting emergency services. For additional information about text-to-911 services, please refer to the Federal Communication Commission’s Text-to-911 Guide.
2. Modifications to this Agreement and to the Services
The Company may automatically amend this Agreement at any time by posting a revised Agreement on the eVoice Website, and if the amendments are material sending information regarding the amendment to the email address you provide to the Company. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE EVOICE WEBSITE TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE SERVICES AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU. Otherwise, this Agreement may not be amended except in writing signed by both you and the Company. The Company reserves the right to modify or discontinue any of the Services with or without notice to you and the Company shall not be liable to you or any third party should the Company exercise its right to do so.
Your Services begin upon activation and automatically renew on a monthly basis, until terminated upon notice by either party, notwithstanding other termination rights indicated herein, and notwithstanding post-termination rights and obligations hereunder.
eVoice, eVoice Classic and eVoice Free, as each is defined herein, will be referred to collectively herein as “the Services.”
The Company offers the Services at its Website www.evoice.com (together with other Websites owned and operated by the Company, the “eVoice Website”). The main Service is:
- eVoice includes (a) a virtual PBX that directs telephone calls to telephone numbers you specify, (b) an auto-attendant allowing callers to have their call routed to one of a number of specified recipients, (c) voicemail accessible by phone, web and an existing email account; and (d) conference calling.
- eVoice Classic includes Voicemail accessible by phone, web and an existing email account.
- eVoice Free includes but is not limited to a local telephone number along with twenty (20) minutes of calling per month, a voice mailbox, inbound texting, and call forwarding to your mobile number. Minutes can be used for inbound and outbound calling.
Each of the following eVoice® service tier options, if not already bundled with your eVoice® plan, can be added to your eVoice® plan at an additional charge (not applicable to eVoice® Classic):
- Voicemail to Text: Voicemail to Text (referred to herein as “V2T”) includes the transcription of voicemails to text, with the transcription routed to you by email (by default) or SMS (optional). You will continue to be able to access your voicemail in audio format by phone, web and email.
- Call Recording: If you have enabled Call Recording on your account, you can record inbound or outbound telephone calls from your eVoice service by using the appropriate “*2” command during the call as long as the other party is on the call. When you use the “*2” command, an automatic audio prompt will play indicating that the entire call is being recorded. If you use the “*2” command again during the call, the recording will stop. The Call Record feature is not currently available for conference calls. Each recorded call is downloadable from your eVoice Account and is stored for thirty (30) days from the date of the recording. If you use the Call Record feature from outside the United States or the other person on the call is outside the United States, you must abide by all applicable international laws, rules and regulations. The call recording feature is intended for single person use only. We reserve the right to disconnect or modify your service plan if we determine, at our sole and absolute discretion, that your usage of this feature is inconsistent with, or in excess of, normal usage patterns of other users of our Services.In addition, some customers may be able to receive inbound fax messages through the eVoice telephone number assigned to your eVoice account, if such feature was included in your original plan.
- Fax: The ability to send and receive fax messages through the eVoice telephone number assigned to your eVoice account, is available with certain Services, depending on which eVoice package you are subscribed to.
- Web and Audio Conferencing: Audio and Web Conferencing services (“Conferencing Services”) are available as either Service add-ons or bundled with certain Services, depending on which eVoice package you are subscribed to. If you are not specifically subscribed to the Web Conferencing service, and such service is not bundled with your subscription package, you agree to pay Usage Charges of $0.25 per minute per participant web connection to use such service. You agree that you are solely responsible for the content of all visual, written or audible communications (“Content”) sent by you or displayed or uploaded by you in using the Conferencing Services. You further agree not to use the Conferencing Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. You also agree to comply with applicable local rules or codes of conduct (including codes imposed by your employer) regarding online behavior and acceptable content and the transmission of technical data exported from the United States or the country in which you reside. The Company reserves the right to investigate and take appropriate action against anyone who, in the Company’s sole discretion, is suspected of violating this provision, including without limitation, reporting you to law enforcement authorities. Use of these Conferencing Services is void where prohibited. Although the Company is not responsible for any such communications, the Company may delete any such communications of which the Company becomes aware, at any time without notice to you. You retain copyright and any other rights you already hold in content which you submit, post or display on or through, the Conferencing Services. You understand and agree that by displaying, exchanging or uploading content to a Company websites, transmitting content using the Conferencing Services or otherwise providing content to the Company, You automatically grant (and warrant and represent You have a right to grant) to the Company a world-wide, royalty-free, sublicensable (to allow Company affiliates, contractors, resellers and partners to deliver the Conferencing Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the content in the course of offering the Company websites and/or the Conferencing Services.
- Text Messaging: Please see Section 1 for important disclosures concerning the eVoice mobile application’s limited text-to-911 capabilities. If you have enabled text messaging on your account, you can send and receive text messages via your eVoice provided domestic US local telephone number through the eVoice mobile application and/or the eVoice website (each a “Text Message” and collectively, “Text Messages”). Each outbound Text Message is limited to a maximum of 1600 characters. Text Messaging pricing is available via the eVoice website. Individual Text Messages may only be sent to one recipient per Text Message. Text Messages can currently only be sent to US-formatted local telephone numbers; as such, Text Messages cannot currently be sent to toll free or international numbers. We reserve the right to disconnect or modify your eVoice plan if we determine, at our sole and absolute discretion, that your usage of the Text Messaging feature is inconsistent with, or in excess of, normal usage patterns of other users of our Services. If an inbound or outbound Text Message exceeds the limits set either by eVoice, or by the carrier delivering your Text Message (as applicable), your Text Message may be sent or delivered as a series of consecutive Text Messages, which will utilize more of your usage under your eVoice plan.
- eVoice International: eVoice International (referred to herein as “International”) provides a “virtual office” in certain countries, meaning that you will have a local telephone number in that country where people can call you. Pricing for International is available on the eVoice website.
- eVoice LIVE Receptionist: eVoice LIVE Receptionist (referred to herein as “LIVE Receptionist”) includes all of the standard eVoice® features (see above) plus a live team of professional receptionists to answer and take messages for calls directed to your Service telephone number. LIVE Receptionist is not eligible for a promotional period offer. Refunds are not provided for charges you incur through use of LIVE Receptionist.
Most fax pages take less than sixty (60) seconds to transmit. However, for each fax transmission (sending or receiving), the number of pages transmitted is calculated based on the greater of the actual number of pages or the number of full and partial 60-second increments of transmission or connection time, whether or not the transmission occurs or is completed (such as instances when someone answers the call or the transmission is interrupted before completion). For example, a one page fax with a transmission duration of 30 seconds is recognized as one page and a one page fax with a transmission duration of one minute and six seconds is recognized as two pages.
Minutes are valid in the month issued and expire at the conclusion of each month. Such minutes have no cash value. Such minutes do not roll over to the next month and you will receive no cash refund in the event any unused minutes remain in your eVoice Free account upon termination or closure of your eVoice Free account. In the event you use more than the allotted twenty minutes in any given month, the Company, in its sole discretion, may offer to upgrade you to a paid eVoice account or suspend your eVoice Free account with or without notice. Any failure by the Company to enforce the eVoice Free minute limit will not preclude the Company from later enforcing such limit, whether for past or current activity. Each customer, whether an individual or company, is limited to a single eVoice Free account. If you or your company desire more than one eVoice number, then you must, and you agree to, upgrade to a paid eVoice account. If there is no activity in your account during any continuous sixty (60) day period, the Company may terminate or suspend your eVoice Free account with or without notice.
The Company provides the eVoice Free service as an accommodation to you, and reserves the right to terminate your eVoice Free service at any time without notice.
Content of Others
Be advised that other users of the Conferencing Services may violate one or more of the above prohibitions, but the Company assumes no responsibility or liability for such violation. If you become aware of misuse of the Conferencing Services by any person, please contact eVoice Customer Support at 866-761-8109. The Company may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or user profiles. However, because situations and interpretations vary, the Company also reserves the right not to take any action. Under no circumstances will the Company be liable in any way for any data or other content available on a Company Website or viewed while using the Conferencing Services, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content on the Company Websites. If at any time you are not happy with the Company websites or the Conferencing Services or object to any material on a Company website, your sole remedy is to cease using the Company websites or Conferencing Services. The Company does not endorse and has no control over what users post or submit to a Company website. You acknowledge that the Company cannot guarantee the accuracy of any information submitted by any user of a Company website, nor any identity information about any user. The Company reserves the right, in its sole discretion, to reject, refuse to post or remove any profile, posting or other data, or to restrict, suspend, or terminate any user’s access to all or any part of a Company website or the Conferencing Services at any time, for any or no reason, with or without prior notice, and without liability. The Company reserves the right to investigate and take appropriate action against anyone who, in the Company’s sole discretion, is suspected of violating this provision, including without limitation, reporting you or any user to law enforcement authorities.
Limitations on Use
Please see Section 1 for important disclosures concerning emergency calling and texting. Other than using the Conferencing Services for conferences or meetings in which you are an active participant, and as permitted under the terms and conditions of this Agreement, the Conferencing Services may be used for internal business purposes only. You will not reproduce, resell, or distribute the Conferencing Services for any purpose. You will not offer or use the Conferencing Services on a timeshare or service bureau basis, or use the Conferencing Services to operate a website or otherwise generate income from the Conferencing Services or use the Conferencing Services for the development, production or marketing of a service or product substantially similar to the Conferencing Services. You shall not engage in any activity or use the Conferencing Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Company websites, Conferencing Services, or any servers or networks connected to the Conferencing Services or the Conferencing Services security systems.
In addition, some customers may be able to receive inbound fax messages through the eVoice telephone number assigned to your eVoice account, if such feature was included in your original plan.
5. Use Limitation and Storage Practices
While your eVoice account is active, the Company will store voicemails, text messages, and faxes through your eVoice number for a period of up to 30 days (by default) unless you change the storage option on your account, and enable you to access these messages through the online Messenger Center. You acknowledge that the Company may change its practices and limitations concerning storage of messages, including without limitation, the maximum (a) period of time that messages will be retained, (b) number of messages stored at any one time and (c) storage space utilized, at any time, as provided for in the Section of this Agreement entitled “Modifications to this Agreement and to the Services” above. You further agree that the Company has no responsibility or liability whatsoever for the deletion or failure to store any voicemails, text messages, or any fax messages (if applicable) or any other communications maintained or transmitted by or through the Services.
The Company is not responsible for any errors, omissions or objectionable content in the transcribed text, even if it is the result of negligence. The Company is not responsible if you do not receive voicemail transcriptions due to an incorrect or nonworking email or SMS address or if you select to receive transcriptions via a method (e.g., email or SMS) that is incapable of receiving the text message. The Company is not responsible for incorrect email addresses or email inboxes that do not properly receive the email notification option you select.
7. Your Responsibilities
You must (a) obtain and pay for all equipment and third-party services (e.g., Internet access and email service) required for you to access and use the Services; (b) maintain any security of your user identification, and other confidential information relating to your eVoice account and; (c) be responsible for all charges resulting from use of your eVoice account, including unauthorized use prior to your notifying the Company of such use and taking steps to prevent its further occurrence.
b. User Account, Password, and Security
As part of your registration process, you will be required to provide a valid email address and select a password. Once you become a registered user, your eVoice number will be automatically sent to you by email. You may change your password to protect your voicemails after logging in to the eVoice Website. You are entirely responsible for notifying the Company of any change in your email address and for failing to maintain the confidentiality of your password, eVoice number and account information. Furthermore, you are entirely responsible for any and all activities that occur under your eVoice account. You agree to immediately notify the Company of any unauthorized use of your eVoice account or any other breach of security known to you.
c. Content of Transmissions
You are fully responsible for the contents of your transmissions through the Services. The Company simply acts as a passive conduit for you to send, receive, store, and retrieve information of your own choosing. However, we reserve the right to take any action with respect to the Services that we deem necessary or appropriate in our sole discretion, if we believe you or your information may create liability for the Company, compromise or disrupt the Services for you or other customers, or cause the Company to lose (in whole or in part) the services of the Company’s ISPs or other suppliers
d. Prohibited Conduct
Your use of the Services is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities laws or false advertising). You agree: (1) to comply with US law regarding the transmission of technical data exported from the United States through the Services; (2) not to use the Services for illegal purposes; (3) not to interfere or disrupt networks connected to the Services; (4) to comply with all regulations, policies and procedures of networks connected to the Services; (5) not to use the Services to infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (6) not to transmit through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind of nature; (7) not to use or reference the Services for chain letters, junk fax or junk mail, spamming or any other use of distribution lists to any person who has not given specific permission to be included in such a process; (8) not to use the Services to attempt to gain unauthorized access to other computer systems; (9) not to interfere with another’s use and enjoyment of the Services or similar services; and (10) not to use the Services to transmit misleading or inaccurate caller identification information. Customer may not use the Services with the intent to defraud, cause harm, or wrongfully obtain anything of value.
You further agree not to transmit or upload any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. The Services make use of the Internet for you to send and receive information of your own choosing. As a result, your conduct is subject to Internet regulations, policies and procedures. If you transmit or are otherwise connected with any email, fax, text message, or voice “spam” or other unsolicited marketing message, you agree to pay the Company its actual damages if those damages can be reasonably calculated. If actual damages cannot be reasonably calculated, you agree to pay the Company liquidated damages of ten dollars (US $10.00) for each piece of “spam” or unsolicited marketing message transmitted from or otherwise connected with your eVoice account. You acknowledge that if actual damages cannot be reasonably calculated, these liquidated damages are a reasonable estimation of such damages and are not a penalty. You also agree that the Company may charge such damages to your credit card or other payment method you use to pay for the Services.
b. Prohibited Charges
You agree that you are not authorized to charge products or services provided to you or at your request to the eVoice number assigned to you by the Company and that you will not request or otherwise cause any third-party to charge any such products or services to such number. Any such charges will give the Company the right to immediately terminate or suspend your eVoice account without notice and you further understand and agree that the Company can immediately charge your credit card or other payment method you use to pay for the Services for these products or services.
c. Unsolicited Fax Advertisement/Spam Drop-Box Policy.
a. Unsolicited Fax Advertisement Policy. The transmission of unsolicited fax advertisements is illegal in the United States under the Federal Telephone Consumer Protection Act of 1991 (TCPA) ( http://www.fcc.gov/cgb/ consumerfacts/unwantedfaxes.pdf) and in the European Union under the Privacy and Electronic Communications Regulations 2003, and is also illegal under the laws of a number of other countries, states and provinces. Distribution of unsolicited fax advertisements through the Services is prohibited and may be considered a material violation of this Agreement. The Company reserves the right to terminate the Agreement and pursue other legal remedies available to it; or any combination of these remedies. Notwithstanding the above, the Company’s distribution of advertising to its customers is not considered unsolicited fax advertising based upon your acceptance of this Agreement.
At the Company’s option and without further notice, the Company may use technologies and procedures, such as filters, that may terminate the transmission of such unsolicited fax advertisements without delivering them.
If you believe that you are in receipt of an unsolicited fax advertisement, and if the fax contains a telephone number, fax number or other contact information to “unsubscribe” from receipt of additional junk faxes, please unsubscribe accordingly. Please contact customer service if you have questions regarding unsolicited fax advertisements.
You hereby acknowledge and agree that the Company has any and all rights (but no obligation) to assert any and all legal claims available against any third party as a result of your receipt of any unsolicited fax advertisements—including, but not limited to, claims under the TCPA and similar laws of any other country, state or province—and to the extent you do have any rights to bring any such claims, you hereby assign any and all such rights to the Company as consideration for its provision of the Services.
Because fax numbers may be reassigned to other customers in the event your account is canceled, and to ensure the best possible service for all customers, you are not permitted to “opt in” to receive, on your fax number, facsimile advertisements of the commercial availability or quality of any property, goods or services from persons with whom you have not established a business relationship.
b. Spam Drop-Box Policy. The Company does not permit its customers to use fax numbers as “drop-boxes” for responses to email or fax spam offers. If you believe you are in receipt of email, or fax, spam that uses an fax number as a “drop-box” for responses, and if the email or fax contains an email address, telephone number, fax number or other contact information to “unsubscribe” from receipt of additional messages, please unsubscribe accordingly. Please contact customer service if you believe your fax number has been used as a “drop-box.”
The Company appreciates your assistance in enforcing and complying with these policies and looks forward to continuing to make your experience a positive one.
8. Management Via The Internet
We will provide you with an internet web site address where you can log in to manage your service, view calls, receive support, and manage basic account information. Although some functions of your service may be configured simply by using your telephone, you may find that some functionality is controlled only through the web site interface. You must have internet access to use our service. It shall be your responsibility to manage all configuration details yourself, unless you have paid for configuration service. Logging in to the web site service requires a common, and current, internet browser (e.g. Microsoft Internet Explorer version 5.5 or 6) with support for SSL encryption and cookies enabled. Anyone whom you give access to the management website, through use of your secure account codes, shall be authorized by you to make any and all changes to your Services, account and Number.
9. Disclaimer of Warranties
THE COMPANY SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND NEITHER THE COMPANY NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS (“PROVIDERS”) MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. THE COMPANY AND ITS PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY, ACCURACY OR COMPLETENESS. NEITHER THE COMPANY NOR ITS PROVIDERS WARRANT THAT ACCESS TO OR USE OF THE COMPANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE COMPANY SOFTWARE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER OF THE COMPANY, IN EVALUATING THE SERVICES OR SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
10. Limitation of Liability
YOUR USE OF THE COMPANY SOFTWARE AND SERVICES IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING, UPLOADING, AND/OR USE OF FILES OR OTHER MATERIAL (INCLUDING COMPANY SOFTWARE) OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM THE COMPANY OR LOSS RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, DATA OR FILES UPLOADED, HOSTED OR TRANSMITTED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE COMPANY SHALL NOT BE LIABLE TO YOU OR OTHER USERS OF THE SERVICES, EVEN IF THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE FOR YOUR FAILURE TO MAKE ALTERNATIVE ARRANGEMENTS FOR EMERGENCY CALLING OR YOUR FAILURE TO ADVISE ANY OTHER USERS OF THE SERVICES’ INABILITY TO PLACE CALLS TO EMERGENCY SERVICES.
YOU AGREE THAT NEITHER THE COMPANY NOR ANY OF ITS SERVICE PROVIDERS WILL BE LIABLE FOR DAMAGES, WHETHER DIRECT OR INDIRECT, (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF YOUR USE OF OR INABILITY TO USE ANY COMPANY SOFTWARE OR SERVICES, INCLUDING WITHOUT LIMITATION YOUR OR ANY OTHER USERS’ RELIANCE ON THE SERVICES FOR EMERGENCY CALLING IN CONTRAVENTION OF THIS CUSTOMER AGREEMENT OR DISCLOSURES PROVIDED ELSEWHERE. NEITHER THE COMPANY NOR ANY OF ITS SERVICE PROVIDERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES, DELAYS, INTERRUPTIONS, FAILURES, MISROUTING, OR ANY OTHER PROBLEMS, WHETHER WITHIN OR OUTSIDE THE COMPANY’S OR ANY SUCH SERVICE PROVIDER’S CONTROL, WHICH COULD LEAD TO THE INTERRUPTION OF SERVICES OR ARE ASSOCIATED WITH TEXT-TO-911 FUNCTIONALITY, REGARDLESS OF THE CAUSE INCLUDING WITHOUT LIMITATION: (I) EQUIPMENT FAILURES OR MALFUNCTIONS; (II) SOFTWARE-RELATED FAILURES, DEFECTS, OR ERRORS; OR (III) ANY ACTS, FAILURE TO ACT, OR ANY CAUSES WHATSOEVER RELATED TO THIRD PARTIES.
YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT TO THE COMPANY SOFTWARE AND SERVICES AS SET FORTH HEREIN, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF THE COMPANY OR ANY SUCH PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE ENTIRE LIABILITY OF THE COMPANY AND ITS PROVIDERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE COMPANY SERVICES AND SOFTWARE OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE COMPANY SERVICES IN THE THREE (3) MONTHS PRECEDING THE DATE OF YOUR CLAIM OR (II) U.S. $500.00. YOU HEREBY RELEASE THE COMPANY AND EACH OF ITS SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. IN ADDITION, VARIOUS SERVICE OFFERINGS, INCLUDING WITHOUT LIMITATION TEXT-TO-911, MAY BE SUBJECT TO FEDERAL OR STATE LAWS THAT LIMIT OR EXCLUDE CERTAIN DAMAGES AND PROVIDE THE COMPANY WITH OTHER PROTECTIONS THAT THE COMPANY DOES NOT LIMIT OR WAIVE IN ANY MANNER WHATSOEVER.
You agree to pay all charges for your use of the Services at the prices then in effect for your plan. The Company reserves the right to charge value-added taxes (“VAT”), sales or other taxes on the Services as it deems appropriate and the Company reserves the right to change prices or institute new charges for access to or use of the Services. All pricing changes will be sent to you by email and you are responsible for regularly reviewing such pricing information to obtain timely notice of such changes.
Continued use or payment of the Services or non-termination of your eVoice account after changes are sent constitutes your acceptance of the prices as modified by the prices sent. To view your current account balance, along with billing details and any accumulated charges, please click on “Admin Settings” after logging in to the eVoice Website.
Conference calls are billed on a per “leg” basis, each conference participant constitutes a “leg.” For example, if there are four participants on a conference call lasting ten minutes, it will consume forty of your minutes.
b. Usage Charges
You will incur charges in addition to the minimum monthly or annual subscription charge (“Usage Charges”) if your combined sent and received fax pages, received voicemail messages, received V2T messages, sent and received text messages, minutes spent initiating and using the audio conferencing feature, and inbound and outbound telephone minutes usage exceeds that permitted by your plan.
If you are using the Services from certain locations, you may also incur charges levied by your Internet service provider, online service provider and/or long distance carrier to access the Services or the Company. When calling to destinations outside of the continental USA, international rates apply from the first minute. Please contact Customer Service for current international rates.
For each fax transmission (sending or receiving) the number of pages is calculated based on the greater of the actual number of pages or the number of full or partial 60-second increments of transmission time. If you are using the Services from certain locations, you may also incur charges levied by your Internet service provider, online service provider and/or long distance carrier to access the Services or the Company. When calling destinations outside of the continental USA, international rates apply from the first minute. Please contact Customer Service for current international rates.
Your eVoice plan may automatically include a promotional period (such as a free trial or limited-time money-back guarantee) of other premium eVoice features. The promotional period may have limitations on the number of sent and received fax pages, voicemail messages, V2T messages, V2T transcriptions, minutes spent initiating and using the audio conference feature, inbound and outbound telephone minutes and the length of the promotional period or free trial. If your usage exceeds the free trial or promotional period limitations, you will automatically be charged for Usage Charges as permitted by your plan. Depending on your plan or payment method,you may not receive a notice from the Company that your promotional period has ended or that your promotional period limits have been reached. To view the specific details of your plan, including any Usage Charges and free trial details, visit the Account Manager section of the Website.
If a V2T message delivered to your wireless phone exceeds a single SMS in length, your carrier may deliver the V2T message as a series of consecutive SMS messages which will utilize more of your text messages under your plan. Additional auto attendants or extension phone numbers may be obtained for an additional monthly fee. Professionally recorded greetings may also be obtained for an additional fee. For information on these additional fees, please see FAQs.
c. Should a recipient of your Text Message have an SMPP destination operator who charges a termination fee or “pass through” amount for delivery or receipt of each Text Message, the Company reserves the right, at its sole and exclusive discretion, to either: (i) pass through such termination or “pass through” charges on to you; or (ii) not to deliver the subject Text Message to your designated recipient.
Charges for your eVoice account balance are due monthly or annually, in accordance with your plan and will be billed by the Company. Your activation fee and monthly or annual service fees, as applicable, are payable in advance and are completely non-refundable. You agree to pay our Services rates and any applicable taxes including value-added taxes (“VAT” where applicable) for your service. You should expect to pay a monthly fee for a predetermined number of minutes, extensions, messages and/or other services as specified in your plan. Unused minutes included within a billing period do not carry forward to the next billing period. Likewise, unused credits do not carry forward to the next billing period.
You are responsible for all calls/minutes, even those originating from unintended callers (e.g. wrong number calls) or those originating from yourself during the setup and administration of your Number, as well as any other use of your account. Lack of usage of your account shall have no effect on your minimum billing amount. For instance, if you do not use your account at all, you are still obligated to your plan’s minimum service fees due hereunder this Agreement.
You agree that the Company may submit charges for your annual service fee annually and for your monthly service fee monthly, plus all applicable Usage Charges, and Late Fees as defined in Section 12(g) herein, in each case, without further authorization from you, until you provide prior notice (in accordance with the Company’s verification procedures, as may be established by the Company from time to time in its sole discretion) (“Verification Procedures”) that you have terminated this authorization. Such notice will not affect charges submitted before the Company reasonably could act on your notice. If you sign up for more than one eVoice number, your first payment for such additional eVoice number(s) may be prorated to coincide with the monthly/annual anniversary of your first eVoice number. The Company may apply additional charges to your account if your payment method fails or your account is past due. Failure to use your account will not be deemed a basis for refusing to pay any charges. If you have any questions regarding any charges that have been applied to your eVoice account, you must contact Customer Service within thirty (30) days of the charge date.
b. Pre-Paid Discounts
If you subscribed for Services pursuant to a special offer granting a pre-paid discount for a fixed term, your pre-paid fees are payable in advance and are COMPLETELY NON-REFUNDABLE. In addition, your initial service fee for the next term immediately following your pre-paid period will be PRE-AUTHORIZED AGAINST YOUR CREDIT CARD LIMIT and will be immediately charged to your credit card, without further authorization from you, upon the expiration of such pre-paid period, unless you provide prior notice (in accordance with the Verification Procedures) that you have terminated this authorization. Such notice will not affect charges submitted before the Company could reasonably act on your notice.
Payment of your eVoice account balance is due monthly or annually, in accordance with your payment plan, the currency in which it is billed, and must be made by the credit or debit card (hereinafter “credit card” will refer to both credit and debit cards) designated by you for eVoice use and transactions or through other methods, including monthly invoicing (if you meet certain criteria) or pre-payment by check or credit card. If your eVoice account is a qualified business account and is approved by the Company for corporate billing, charges will be accumulated, identified by Customer identification number and invoiced on a monthly basis.
If you chose to pay your account balance by credit card, each time you use the Services, or allow or cause the Services to be used, you agree and reaffirm that the Company is authorized to charge your designated card. If the credit card payment is not received by the Company from the card issuer (or its agent or affiliate), you agree to pay all amounts due upon demand by Company. Your card issuer’s agreement governs your use of your designated card, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder. You are responsible for overdraft fees and all other fees charged by your card issuer. You agree that the Company may (at its option) accumulate charges incurred during your monthly billing cycle and submit them as one or more charges during or at the end of each cycle, and that the Company may delay obtaining authorization from your card issuer until submission of the accumulated charges. This means that accumulated charges may appear on the statement you receive from your card issuer. In order to avoid interruptions in the Services caused by rejected credit or debit card charges, the Company reserves the right to update your credit or debit card details (such as expiration dates or new card numbers) where this is not prohibited by law. You understand and agree that the Company is entitled to obtain such updated card details, store them and use them to bill charges. To ensure continued access to the Services, you may provide other methods of payment (i.e. a second or third credit card) which will be charged if the primary payment method is declined.
The Company may offer promotions which may include free trial periods, free usage allocations, limited-time money-back guarantees or other promotional elements. The following general guidelines apply to all such promotions, but each offer is also subject to the associated terms and conditions of each offer:
Money-back guarantee: If the plan you selected includes a money-back guarantee, then during the specified promotional period you may receive a full refund for the base charge you paid for that promotional period by following the cancellation procedures at https://support.evoice.com/cancel. You must cancel before the end of the promotional period to be eligible for this refund. If you exceed the usage limits of the promotional period, one or more of the following may occur: (i) you will be upgraded to a paid customer for that service and your credit card on file will be charged immediately, (ii) you will be notified that you have exceeded your offer limits and given the option to cancel or upgrade, or (iii) your account will be suspended pending further action by you or by Company.
Free trial offer: If the plan you selected includes a free trial, you may use the service for a specified period of time before being charged and generally there are usage limits associated with this free trial period. If you cancel your account prior to the end of such free trial period, and you have not exceeded the usage limits included in the offer, you will not be billed. If you exceed the usage limits included in the free trial offer you signed up for, one or more of the following actions may occur: (i) you will be upgraded to a paid customer for that service and your credit card on file will be charged immediately, (ii) you will be notified that you have exceeded your offer limits and given the option to cancel or upgrade, or (iii) your account will be suspended pending further action by you or by Company.
e. Refund Policy
Charges applied to your account are generally non refundable. Refunds, if applicable, at the sole discretion of Company, or as outlined in specific promotional offers, are often issued after the initial charges have been billed, as originally scheduled, on the applicable billing statement, even if the refund request was made prior to the close of the billing cycle. Refunds are not provided on other optional service fees, such as voice-over fees. There shall be a limit of one refund per account, company or person. Refunds will only be issued to the original credit card used at the time of purchase. Refunds are non-transferable. You must retain a copy of your refund request and a copy of our confirmation, with date/time stamps, until receipt of the refund. Refunds will be issued within 30 days of confirmation. Termination of your account by Company, due to your breach of this Agreement, or other provided terms or policies, disqualifies any and all entitlements to potential refunds.
f. Providing Notification to Company
You must promptly notify the Company of changes to: (a) the account number or expiration date of your designated credit card; (b) your billing address for the designated credit card; and (c) the name of each minor whom you have authorized to use your eVoice account. You must also promptly notify the Company if your card is canceled (e.g., for loss or theft).
g. Late Fees
An administrative late fee of $4.95 USD or CAD (or the approximate equivalent in local currency) may be charged to your account each time full payment of your outstanding balance is not received by the payment due date. You agree that the Company may submit charges for late fees without further authorization from or notice to you, until you provide prior notice (in accordance with the Company’s verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated or canceled your Services, or wish to change your designated card(s). Such notice will not affect charges submitted before the Company reasonably could act on your notice.
13. Termination or Suspension
- By You
You may terminate your eVoice account at any time, with or without cause, upon notice. Instructions for how to give notice to the Company that you want to terminate your account are provided at https://support.evoice.com/cancel and must be followed in order to effect termination. A Customer Service representative will assist you with terminating your eVoice account in accordance with the Company’s Verification Procedures. Upon termination of your eVoice account, the Customer Service representative will provide you with a cancellation number. Your account will not be deemed terminated unless and until you receive the cancellation number.
- By the Company
The Company may terminate or suspend your eVoice account at any time, with or without cause, upon notice. The Company reserves the right to do so without prior notice, provided that the Company will attempt to confirm such termination or suspension by subsequent notice. In addition, the Company reserves the right to suspend or terminate your eVoice account without notice upon rejection of any credit card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to the Company when the Company believes you are liable for the charge. We may assess an additional fee of twenty-five dollars ($25) for any check or charge (credit card or bank account) returned for nonpayment, or for any item required to be processed manually outside of our automatic billing/charging system, and this fee may be automatically added to your bill in these events. If your account is suspended or terminated and the Company later reactivates your account, the Company may also charge you a re-activation fee of $25 (in addition to any Late Fee(s) you may also be charged for a delinquent account), in the Company’s sole and exclusive discretion. Such rights are in addition to and not in lieu of any other legal rights or remedies available to the Company. The Company reserves the right to limit use of the Services or to terminate any account if we believe unreasonable usage has occurred on such account or if the Services are used in a manner that is not permitted by this Agreement. The Company also reserves the right to take any action with respect to the Services that it deems necessary or appropriate in its sole discretion if the Company believes you or your usage may create liability for the Company, compromise or disrupt the Services for you or others or cause the Company to lose (in whole or in part) the services of the Company’s suppliers. The Company reserves the right to determine, in its sole discretion, how to address any issues or disputes that arise regarding account access or entitlement to specific telephone numbers. In certain situations, the Company may decide to suspend or terminate the account and/or any telephone numbers associated with the account.
The Company may automatically terminate or suspend your eVoice Free account without notice if: (i) if there is no activity in your account during any continuous sixty (60) day period (for purposes of this determination, advertisements and informational messages sent by the Company are not considered faxes received); (ii) you or an intermediary blocks or filters any emails sent by or on behalf of the Company to the email account(s) associated with your eVoice Free account; or (iii) you opt out of receiving advertising messages sent to you by the Company or its affiliates.
- Fair Use Policy
Any “unlimited” plans (where you pay a flat fee per month and do not pay a per-minute fee for continental United States usage) are governed by this Fair Use policy. We reserve the right to disconnect or modify your Services if we determine, in our sole and absolute discretion, that your usage exceeds more than two (2) times the average level of usage for eVoice® customers within any thirty (30) day period. For purposes of this policy, “usage” means the total aggregate combination of the following (as applicable): the number of received fax pages, sent and received text messages, received voicemail messages, received V2T messages, minutes spent initiating and using the audio conferencing feature, and inbound and outbound telephone minutes. “Unlimited” usage areas include the continental United States, Alaska, Hawaii, Canada, and select international locations determined at our discretion. Other areas are subject to a per-minute fee.
All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising the Services are wholly owned by the Company and/or its service providers except where expressly stated otherwise. You may not use the Company’s trademarks, trade names, patents, copyrights or other intellectual property rights without the Company’s prior written permission.
15. Customer of Record of eVoice Telephone Numbers
YOU UNDERSTAND AND AGREE THAT YOU WILL HAVE USE OF THE TELEPHONE NUMBER(S) THAT ARE PROVIDED AS PART OF THE SERVICES ONLY UNTIL THE END OF THE TERM OF YOUR AGREEMENT WITH THE COMPANY OR UNTIL THE COMPANY NO LONGER PROVIDES YOU WITH SERVICE, UNLESS YOU SATISFY THE PROVISIONS IN SECTION b BELOW. THE COMPANY IS GRANTING YOU THE REVOCABLE PERMISSION TO USE SUCH TELEPHONE NUMBER(S) IN ACCORDANCE WITH THIS AGREEMENT FOR THE LENGTH OF THE TERM OF THE AGREEMENT. YOU UNDERSTAND THAT THE COMPANY IS THE CUSTOMER OF RECORD OF ALL TELEPHONE NUMBER(S) PROVIDED AS PART OF THE SERVICES AND, THEREFORE, THE COMPANY HAS CERTAIN RIGHTS WITH RESPECT TO THE NUMBER(S), INCLUDING WITHOUT LIMITATION CERTAIN RIGHTS RELATING TO PORTING OF THE NUMBER(S) (“PORTING” IS CAUSING OR ATTEMPTING TO CAUSE NUMBER(S) TO BE TRANSFERRED, SWITCHED, OR OTHERWISE MOVED TO ANY OTHER SERVICE PROVIDER, TELEPHONE CARRIER OR ANY OTHER PERSON OR ENTITY). AS THE CUSTOMER OF RECORD FOR THE TELEPHONE NUMBER(S), THE COMPANY HAS THE DIRECT RELATIONSHIP WITH THE TELEPHONE COMPANY THAT PROVIDES THE UNDERLYING TELECOMMUNICATIONS THAT SUPPORT THE SERVICES YOU RECEIVE FROM THE COMPANY. YOU UNDERSTAND AND AGREE THAT THE COMPANY IS NOT, ITSELF, A TELEPHONE COMPANY AND THEREFORE THE COMPANY IS NOT UNDER ANY LEGAL OBLIGATION TO PERMIT YOU TO PORT ANY TELEPHONE NUMBER(S) PROVIDED AS PART OF THE SERVICE UNLESS YOU SATISFY THE PROVISIONS IN SECTION b BELOW. YOU UNDERSTAND AND AGREE THAT YOU ARE EXPRESSLY PROHIBITED FROM CAUSING OR ATTEMPTING TO CAUSE SUCH NUMBER(S) TO BE TRANSFERRED TO ANY OTHER SERVICE PROVIDER, TELEPHONE CARRIER OR ANY OTHER PERSON OR ENTITY UNLESS YOU SATISFY THE PROVISIONS IN SECTION b BELOW FOR PORTING OUT THE NUMBER(S). IN THE EVENT YOU VIOLATE THE FOREGOING PROVISION, YOU AGREE TO IMMEDIATELY RETURN THE NUMBER(S) TO THE COMPANY AND PAY THE COMPANY AN AMOUNT EQUAL TO US $500 (OR THE EQUIVALENT IN LOCAL CURRENCY). YOU AUTHORIZE THE COMPANY TO CHARGE YOUR ACCOUNT CREDIT CARD OR TAKE ANY OTHER MEASURES REQUIRED TO COLLECT THIS PAYMENT AND TO CAUSE THE NUMBER(S) TO BE SO RETURNED. YOU AGREE THAT THIS PAYMENT REPRESENTS LIQUIDATED DAMAGES REFLECTING A REASONABLE MEASURE OF THE ACTUAL OR ANTICIPATED HARM, DAMAGES CAUSED, AND ADMINISTRATIVE FEES INCURRED BY THE COMPANY FROM SUCH VIOLATION IN LIGHT OF THE DIFFICULTIES OF PROOF OF THE COMPANY’S LOSS AND THAT THIS PAYMENT IS NOT A PENALTY. SOME NON-US JURISDICTIONS DO NOT ALLOW LIMITATIONS TO BE PLACED ON YOUR RIGHT TO PORT THE TELEPHONE NUMBER ASSIGNED TO YOU, SO SOME OF THESE LIMITATIONS MAY NOT APPLY IF YOU OR THE NUMBER(S) ASSIGNED TO YOU ARE LOCATED IN SUCH A JURISDICTION
- Non Toll-Free Numbers Provided by the Company May Not be Ported
THE COMPANY IS THE CUSTOMER OF RECORD FOR ALL NON TOLL-FREE NUMBERS PROVIDED BY THE COMPANY TO YOU AND, THEREFORE, THE COMPANY HAS EXCLUSIVE RIGHTS OVER PORTING SUCH NUMBERS. YOU ARE PROHIBITED FROM AND MAY NOT PORT OUT NON TOLL-FREE NUMBERS THAT WERE PROVIDED TO YOU BY THE COMPANY
- Telephone Numbers Ported In and Toll Free Telephone Numbers May be Ported Under Certain Conditions
IF YOU “PORTED IN” ANY TELEPHONE NUMBER(S) IN CONNECTION WITH YOUR USE OF SERVICES, THE COMPANY ASSIGNED YOU ONE OR MORE TOLL FREE VOICE SERVICE NUMBERS, OR YOU ARE ENTITLED TO “PORT OUT” A TELEPHONE NUMBER UNDER NON-US LAW, YOU MAY “PORT OUT” SUCH NUMBER(S) IN CONNECTION WITH TERMINATING YOUR ACCOUNT IF, AND ONLY IF, YOU SATISFY THE FOLLOWING REQUIREMENTS: (i) YOU PROVIDE WRITTEN NOTICE TO THE COMPANY OF YOUR INTENTION TO “PORT OUT” SUCH TELEPHONE NUMBER(S) NO LATER THAN THIRTY (30) DAYS AFTER PROVIDING THE COMPANY NOTICE OF YOUR INTENT TO TERMINATE YOUR ACCOUNT (THE “PORTING NOTICE PERIOD”); (ii) YOUR NEW TELEPHONE CARRIER PROVIDES THE COMPANY’S TELEPHONE CARRIER A DULY EXECUTED PORTING REQUEST PRIOR TO THE EXPIRATION OF THE PORTING NOTICE PERIOD; (iii) YOU HAVE PAID THE COMPANY FOR ALL SERVICES PROVIDED TO YOU PRIOR TO THE DATE YOU PROVIDE THE COMPANY NOTICE OF YOUR INTENT TO TERMINATE YOUR ACCOUNT; (iv) PRIOR TO THE EXPIRATION OF THE PORTING NOTICE PERIOD, THE COMPANY HAS RECEIVED AN ADMINISTRATIVE FEE TO COVER ITS REASONABLE COSTS ASSOCIATED WITH PROCESSING THE PORT IN AN AMOUNT OF $40 PER TELEPHONE NUMBER(OR THE EQUIVALENT IN LOCAL CURRENCY); AND (v) THE COMPANY HAS SUCCESSFULLY BILLED YOUR CREDIT CARD FOR AN AMOUNT EQUAL TO THREE TIMES THE MONTHLY RECURRING FEE FOR THE SERVICE ORGINALLY ORDERED. YOU HEREBY AUTHORIZE THE COMPANY TO CHARGE YOUR CREDIT CARD IN THE APPLICABLE AMOUNT FOR THE ADMINISTRATIVE FEE IN SUBSECTION (iv) ABOVE AND ANY REMAINING COST TO SATISFY SUBSECTION (v) ABOVE OR TO OTHERWISE ARRANGE TO MAKE THIS PAYMENT TO THE COMPANY WITHIN THE PORTING NOTICE PERIOD. THE PORTING PROCESS CAN BE LENGTHY; IF YOU WOULD LIKE TO MAINTAIN YOUR ACCOUNT WITH THE COMPANY DURING THE PORTING PROCESS, YOU MUST MAINTAIN YOUR ACCOUNT IN AN ACTIVE STATUS AND NOT TERMINATE YOUR ACCOUNT UNTIL THE PORTING OUT IS COMPLETE. REGARDLESS OF WHEN THE PORT OUT IS COMPLETE, YOU WILL CONTINUE TO BE RESPONSIBLE TO PAY ALL APPLICABLE ACCOUNT FEES WITH RESPECT TO THE TELEPHONE NUMBERS UNTIL YOU FORMALLY TERMINATE YOUR SERVICE. IF YOU FAIL TO SATISFY ANY OF THE FOREGOING REQUIREMENTS, THE COMPANY REMAINS THE CUSTOMER OF RECORD OVER THE NUMBER(S) AND YOU ARE EXPRESSLY PROHIBITED FROM CAUSING OR ATTEMPTING TO CAUSE SUCH NUMBER(S) TO BE TRANSFERRED TO ANY OTHER SERVICE PROVIDER, TELEPHONE CARRIER OR ANY OTHER PERSON OR ENTITY. THE COMPANY ALSO RETAINS THE RIGHT TO RECLAIM THE NUMBER(S) FROM YOU AFTER THE NUMBER(S) ARE PORTED OUT IN CONTRAVENTION WITH THESE REQUIREMENTS AND TO CHARGE YOUR CREDIT CARD THE US$500 (OR THE EQUIVALENT IN LOCAL CURRENCY) IN LIQUIDATED DAMAGES SET FORTH ABOVE IN THIS SECTION. YOU UNDERSTAND AND AGREE THAT EVEN IF YOU SATISFY THE REQUIREMENTS SET FORTH IN THIS SECTION b, TECHNICAL OR PROCEDURAL DIFFICULTIES OR INTERRUPTIONS MAY OCCUR WHEN ATTEMPTING TO PORT OUT THESE NUMBERS (E.G. WHEN NO PORTING AGREEMENT EXISTS BETWEEN YOUR AND OUR TELEPHONE CARRIER OR FOR ANY OTHER REASON) AND SUCH DIFFICULTIES OR INTERRUPTIONS MAY PREVENT YOUR NEW CARRIER FROM PORTING THE NUMBERS. THE COMPANY IS NOT RESPONSIBLE FOR SUCH TECHNICAL OR PROCEDURAL DIFFICULTIES OR INTERRUPTIONS AND YOU WILL RECEIVE NO REFUND OF YOUR ADMINISTRATIVE FEE.
- Re-assignment of eVoice Number Upon Termination
You understand and agree that following the termination of your eVoice account for any reason, your eVoice number may be re-assigned immediately to another customer. You agree that the Company will not be liable for damages (including consequential or special damages) arising out of any such re-assignment and you hereby waive any claims with respect to any such re-assignment, whether based on contractual, tort or other grounds, even if the Company has been advised of the possibility of damages.
- Company’s Right to Change Your eVoice Number
You understand and agree that the Company may from time to time need to change the eVoice number assigned to you (whether due to an area code split or any other reason whether outside or within the Company’s control). You agree that the Company will not be liable for damages (including consequential or special damages) arising out of any such change in the eVoice number assigned to you and you hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if the Company has been advised of the possibility of damages.
You agree to defend, indemnify and hold harmless the Company and each of its licensors and service providers who provide services to the Company or to you in connection with the Services from and against any and all liabilities, expenses (including attorneys’ fees) and damages arising out of claims based upon; (i) use of your eVoice account and the Services, including any violation of this Agreement by you or any other person using your account or the Services, whether or not such usage was expressly authorized by you; (ii) any claims related to the text-to-911 functionality regardless of whether such claims are based on your actions or failure to act, or based on third parties’ use of the eVoice account or Services, whether or not such usage was expressly authorized by you; (iii) any claims related to the lack of emergency calling functionality, regardless of whether such claims are based on your acts or your failure to act, or based on third parties’ use of the eVoice account or Services, whether or not such usage was expressly authorized by you; (iv) any claim of libel, defamation, violation of rights of privacy or publicity; any loss of service by other customers; any infringement of intellectual property or other rights of any third parties; or (v) any violation of any laws or regulations, including but not limited to any violations of any laws or regulations prohibiting transmission of unsolicited emails, faxes, calls, or text messages.
17. No Resale Of The Services
Your right to use the Services is personal to you. You agree not to resell the use of the Services.
18. Participation In Promotions Of Advertisers
You may enter into correspondence with or participate in promotions of advertisers showing their products on the Services. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between you and the advertiser. The Company assumes no liability, obligation or responsibility for any part of such correspondence or promotion.
19. Mobile Applications
With the eVoice Mobile Applications (“Applications”), you can access and use selected features of your Services through your mobile device. Not all mobile devices are supported. You are responsible for any charges incurred by you from your cellular telephone service provider due to calls received, calls placed, text messages received or sent, or other uses of the Applications which result in such charges. Please review your provider’s policies and ensure you understand these charges before using the Applications. If you access the Services via the Application, such access will utilize your Services’ minutes as outlined in Section 11.
You may not:
- Modify the Applications or use them for any commercial purpose, or any public display, performance, sale or rental;
- Decompile, reverse engineer or disassemble the Applications;
- Remove any copyright or other proprietary notices from the Applications; or
- Transfer the Applications to another person. You also agree to prevent any unauthorized copying of the Applications.
20. Notices; Consent
Notices given by the Company to you will be given to the administrator on the Account by email, by a general posting on the eVoice Website or to the administrator on the Account by conventional mail. Notices given by you to the Company must be given by email or by conventional mail (subject, however, to the Company’s Verification Procedures, which may include the requirement that you contact the Company by phone to confirm that any such notice was in fact sent by you). Notices to the Company by conventional mail must be sent to eVoice, ATTN: Legal Department, 114 5th Avenue, 15th Floor, New York, NY 10011. In any matter requiring the Company’s prior consent, such consent will be considered given only if made in writing by an authorized representative of the Company.
21. General Terms
THE LAWS OF THE STATE OF CALIFORNIA, U.S.A., EXCLUDING ITS CONFLICTS-OF-LAW RULES, GOVERN THIS AGREEMENT AND YOUR USE OF THE COMPANY SOFTWARE AND SERVICES. THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY DISCLAIMED. YOU EXPRESSLY AGREE THAT EXCLUSIVE JURISDICTION FOR ANY CLAIM OR DISPUTE ARISING FROM THE USE OF THE COMPANY SOFTWARE OR SERVICES RESIDES IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA OR A SUPERIOR COURT FOR THE STATE OF CALIFORNIA LOCATED IN LOS ANGELES COUNTY. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. The Company’s failure to act with respect to a breach by you or others does not waive the Company’s right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or any rights hereunder, and any attempt to the contrary is void. The Company shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond the Company’s reasonable control. Parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors, although such technology may not be effective with regard to receipt of email or other messages as provided as part of the Services.
22. Consumer Rights
Under California Civil Code Section 1789.3, California Customers are entitled to the following specific consumer rights information:
- Pricing Information
Current rates for using the Services may be obtained by calling Customer Service. The Company reserves the right to change recurring fees or Usage Charges and surcharges or to institute new fees at any time, as provided for in the Section entitled “Modifications to this Agreement and to the Services” above.
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
23. Agreements to Arbitrate All Disputes
- You and the Company agree that all disputes and claims between you and the Company shall be settled by binding arbitration instead of in courts of general jurisdiction. This agreement to arbitrate is intended to be broadly interpreted and includes, but is not limited to any dispute, claim or controversy arising out of or relating in any way to the Services, the Company software, the eVoice Website, the Agreement or any aspect of the relationship between you and the Company. You agree that, by agreeing to the Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Company are each waiving the right to a trial by jury or to participate in a class action. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against the Company on your behalf. This arbitration provision shall survive termination of this Agreement and the termination of your account.
- A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to the Company should be addressed to: ATTN: Legal Department, 114 5th Avenue, 15 th Floor, New York, NY 10011. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If the Company and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by the Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or the Company is entitled. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after the Company receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000.
- The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by the Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org. The arbitrator is bound by the terms of the Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Unless the Company and you agree otherwise, any arbitration hearings will take place by video or telephone conference. If your claim is for US$10,000 or less, the Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the Agreement.
- The Company may make a written settlement offer anytime before an arbitrator is selected. If the arbitrator issues you an award that is greater than the value of the Company’s last written settlement offer made before an arbitrator was selected (or if the Company did not make a settlement offer before an arbitrator was selected), then the Company will pay you the amount of the award or US$1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
- YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
a. Single Copy License
The materials at the eVoice Site, www.evoice.com and the web pages within it (the “Site”), are copyrighted and any unauthorized use of such materials may violate copyright, trademark and other laws. You may download one copy of the information or software (“Materials”) found on the Site on a single computer for your personal, non-commercial internal use only unless specifically licensed to do otherwise by the Company in writing or as allowed by any license terms which accompany or are provided with individual Materials. This is a license, not a transfer of title, and is subject to the following restrictions: you may not:
a. Modify the Materials or use them for any commercial purpose, or any public display, performance, sale or rental;
b. Decompile, reverse engineer or disassemble software Materials except and only to the extent permitted by applicable law;
c. Remove any copyright or other proprietary notices from the Materials;
d. Transfer the Materials to another person. You agree to prevent any unauthorized copying of the Materials.
b. Termination of this License
The Company may terminate this license at any time if you are in breach of the terms of this Agreement. Upon termination, you will immediately destroy the Materials.
c. Ownership of Materials
Materials are copyrighted and are protected by worldwide copyright laws and treaty provisions. They may not be copied, reproduced, modified, published, uploaded, posted, transmitted or distributed in any way without the Company’s prior written permission. Except as expressly provided herein, the Company and its suppliers do not grant any express or implied right to you under any patents, copyrights, trademarks or trade secret information. Other rights may be granted to you by the Company in writing or incorporated elsewhere in the Materials.
Links provided on the Site are provided solely as a convenience to you and the provision of any such link does not constitute our endorsement of the linked website or its provider or of any of the content, products or services contained or offered therein. Your use of linked websites is subject to the conditions, if any, that each of those websites has posted. You agree that the Company is not responsible for the accuracy, copyright compliance, legality, decency or any other aspect of the contents, products, Services or any transmissions received through such websites. You further agree that the Company has no liability whatsoever from such third party websites and your usage of them.
THE MATERIALS ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE MATERIALS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OF LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTIAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
The Company and its suppliers further do not warrant the accuracy or completeness of the information, text, graphics, links or other items contained within these Materials.
The Company may make changes to these Materials, or to the services described therein, at any time without notice. The Company makes no commitment to update the Materials.